(dissenting, with whom Whittemore and
Reardon, JJ. join). That the traffic in narcotics is an evil which the State may take strong measures to suppress is not to be doubted. But such measures, however laudable in purpose, must not transcend constitutional limits. I am of opinion that the portion of the statute under consideration transcends those limits and that the defendant's motion to dismiss should have been granted.
The statute creates a felony punishable by imprisonment up to five years if one “is in the company of a person, knowing that said person is illegally in possession of a narcotic drug.” To make this drastic provision less vulnerable to constitutional attack, the majority have read into it certain exculpatory provisions. 1 Under the majority's view the *277clause under consideration imports “ (a) acquiescent association with another, known to possess narcotics, and (b) an absence of prompt and adequate objection by the defendant to the illegal possession. A violation of [this clause] is made out by proof that the defendant had more than casual or momentary association with another, with knowledge of the latter’s illegal possession, unless the defendant shows facts constituting justification or excuse (as, for example, inability to withdraw after acquiring knowledge of possession, or reasonable cause for remaining, such as that he was a relative, priest, or doctor attempting to discourage continued violation or, possibly, that other exculpatory circumstances existed).”
In answering the defendant’s argument that the statute violates his right of free association, the majority state that the statute is designed to discourage the possessor of narcotics by punishing his companions, thus in effect ostracizing the possessor. I seriously doubt the constitutionality of a statute which attempts to punish the possessor by imprisoning his companions. The majority opinion also states that this is not guilt by association because it is the association itself that is punished. With deference, I find this to be a distinction without a difference. It seems to me that a statute so designed would be a classic example of guilt by association, a doctrine expressly repudiated by this court in Commonwealth v. Fancy, 349 Mass. 196, 200. See Uphaus v. Wyman, 360 U. S. 72, 79.
But I do not rest my dissent on this ground because I cannot accept the majority’s rationale as to the statute’s purpose. The statute, I submit, was aimed not at the possessor but at his companions. It is a dragnet statute which permits the arrest and conviction of persons (found in the company of a possessor of narcotics) who are suspected of having also illegally possessed or otherwise dealt with narcotics, but cannot be proved to have done so. Doubtless •the statute brings to book many who have in fact violated the narcotic laws, but it also brings within its sweep persons who have neither committed nor intended to commit such *278a violation. For example, a college student could be convicted under the statute if he merely continued to reside with a roommate who he knew illegally possessed marihuana-. It is difficult to see how such conduct can be classified as criminal. “There can be no doubt that a State may punish one for an attempt to commit a crime. But conduct which falls short of that . . . has never been punishable.” Alegata v. Commonwealth, 353 Mass. 287, 301. Paraphrasing what is said in the Alegata case, “It is hard to see how suspicion of [a violation of the narcotic laws] . . . can transform otherwise innocent behavior into a crime. Suspicion, which is an inadequate ground for arrest, is no more satisfactory as a basis for punishment.” P. 292. In my view, the challenged portion of § 213A is an invalid exercise of the police power and void on its face as repugnant to the due process clause of the Fourteenth Amendment and to art. 12 of our Declaration of Rights in that it seeks to make criminal conduct which cannot ■ fairly be classed as such. See Alegata v. Commonwealth, 353 Mass. 287, 297.
I think that the statute also is invalid on the ground of vagueness. Under the statute, as construed by the majority, a defendant may not be convicted if he “shows facts constituting justification or excuse (as, for example, inability to withdraw after acquiring knowledge of possession, or reasonable cause for remaining, such as that he was a relative, priest, or doctor attempting to discourage continued violation or, possibly, that other exculpatory circumstances existed.) ” Under this construction it is difficult to say with any degree of certainty what the statute permits and what it forbids. A “statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Constr. Co. 269 U. S. 385, 391. Commonwealth v. Slome, 321 Mass. 713, 715. Commonwealth v. Carpenter, 325 Mass. 519, 521. Alegata v. Commonwealth, 353 Mass. 287, 293.
I am not so naive as to suppose that the defendant in the *279case at bar was a nonparticipating dupe whose involvement consisted merely of innocent companionship. But the extent of his involvement is not important. The statute is challenged as unconstitutional on its face. "If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. . . . It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression.” Lanzetta v. New Jersey, 306 U. S. 451, 453.
In the absence of these exculpatory provisions, the statute would in effect create a conclusive presumption that one who is knowingly in the company of a person illegally possessing narcotics is in some way assisting or aiding that person in his violation of the law. Such a presumption would be unreasonable and therefore unconstitutional. The Legislature does not have the power “to declare an individual guilty or presumptively guilty of a crime.” McFarland v. American Sugar Ref. Co. 24 U. S. 79, 86. Tot v. United States, 319 U. S. 463, 466-469. See Seattle v. Ross, 54 Wash. 2d 655.